10. Assignment of Proceeding

The consolidated proceedings, Application (A.) 00-11-038, A.00-11-056, and A.00-10-028, are assigned to Commissioner Michael R. Peevey and ALJ Steven Kotz.

Findings of Fact

1. TURN has satisfied the various prerequisites for eligibility to receive an award for the work covered in the two requests for compensation that are resolved in today's decision.

2. Representation in judicial appellate proceedings constitutes a distinct market for legal services, distinguishable from representation in administrative proceedings such as those at this Commission.

3. The hourly rate ranges that the Commission has approved are specific to intervenors' work at the Commission. Those ranges apply to both in-house and outside counsel.

4. The hourly rates approved today for TURN's outside counsel are specific to judicial appellate proceedings. These rates have no application to work performed in Commission proceedings.

5. The hourly rates approved today for TURN's outside counsel rely on the rates approved in D.10-02-008.

6. The rates for outside counsel in TURN's February 2009 compensation request are for work performed after the period covered in TURN's June 2004 request. A comparison of these rates to the rates under the settlement approved in D.10-02-008 shows that the more recent rates are higher, but the overall escalation is close to the escalation that the Commission has approved for its own hourly rate ranges for intervenor representatives.

7. TURN made a substantial contribution to D.10-02-008 on the hourly rates for outside counsel used in obtaining judicial review. TURN made no substantial contribution on compensability of an intervenor's work in obtaining judicial review or on entitlement to an hourly rate "multiplier."

8. TURN is not entitled to compensation for its work in petitioning the California Supreme Court to review TURN v. PUC. The Supreme Court's summary denial of the petition added nothing to the analysis provided by the California Court of Appeal.

9. Hours included in the "General" category are typically those spent in initial preparation for a Commission proceeding and other non-issue specific work.

10. The over 400 "General" hours claimed by TURN are excessive in the context of judicial writ litigation that TURN initiated. These hours are also for the most part issue-related. It is reasonable to disallow 40% of "General" hours.

11. Initial preparation and justification of an intervenor's compensation request is compensated by the Commission at half of the authorized hourly rate of the representative preparing the request. It is reasonable to apply this rule to TURN's hours devoted to initial preparation.

12. Regarding the hourly rates for TURN's staff, the previously approved rates are appropriate for these individuals and the years in which their hours were recorded.

13. For attorney representatives from TURN's outside firm who worked on the judicial appellate review during periods not covered by the settlement approved on D.10-02-008, some of the requested hourly rates appear anomalous. Specifically, some of these rates greatly exceed the rates approved for intervenor representatives appearing before this Commission, and the size of this premium is much higher, on both a percentage and an absolute dollar basis, than the premium inherent in the rates approved for the outside firm's senior named partners. However, this apparent anomaly occurs also with respect to the hourly rates underlying the settlement.

14. Peter Foley, a non-attorney working for TURN's outside counsel, provided what was essentially clerical support that did not involve his scientific expertise. Clerical support is not separately compensated but is subsumed in the hourly rates that the Commission approves for attorneys and experts. Thus, Foley's hours are not compensable.

15. Filing fees and other expenses that TURN incurred with respect to its petition to the California Supreme Court are unrelated to TURN's substantial contributions and should be disallowed.

16. Except as noted in the above findings, TURN's fees and costs that we address in today's decision are reasonable and productive as those terms are used in the intervenor compensation statute.

17. Regarding TURN's February 2009 compensation request, TURN is entitled to an award of $127,952.79, as calculated in Section 8 of today's decision. Interest on this award accrues beginning on September 19, 2009 (the 75th day after July 6, 2009, when TURN filed its allocation of hours by issue), and continuing until full payment is made of both awards in today's decision.

18. The award set forth in Finding of Fact 17 should be paid by SCE as the regulated utility directly involved in the judicial litigation from which the awards derive.

Conclusions of Law

1. Today's decision should not affect the hourly rate ranges that the Commission has approved for intervenor's work (whether performed by in-house staff or outside representatives) in Commission proceedings.

2. TURN's work regarding the hourly rate "multiplier" and the compensability of an intervenor's work in obtaining judicial review did not make a substantial contribution because that work did not assist the Commission to carry out its statutory mandate.

3. When an intervenor has made a substantial contribution to some but not all of the issues on which the intervenor participated, or when the intervenor's position on an issue is adopted in part, the intervenor is entitled to compensation for its work related to those issues where it contributed, to the extent that the intervenor's claimed fees and costs are reasonable and the work is productive.

4. Except for the disallowances described in the foregoing Opinion and Findings of Fact, TURN is entitled to compensation, as calculated in Section 8 of the foregoing Opinion.

5. SCE should pay the awards ordered in today's decision.

6. TURN is entitled to interest on the award pursuant to TURN's February 2009 request for compensation in this proceeding. Interest should be calculated as set forth in Finding of Fact 17.

7. Today's decision resolves all outstanding issues regarding TURN's February 2009 request for compensation. No other matters in this proceeding remain to be resolved, so the proceeding should be closed.

8. To ensure that payment of the award in today's decision occurs without further delay, today's decision should be made effective immediately.

ORDER

IT IS ORDERED that:

1. The Utility Reform Network is awarded $127,952.79 as compensation for its substantial contributions to Decision 10-02-008.

2. Southern California Edison Company must pay the full amount of the award within 30 days of the effective date of this decision.

3. Southern California Edison Company must also pay interest on the award beginning on September 19, 2009, at the rate earned on prime, three-month commercial paper as reported in Federal Reserve Statistical Release H.15, and continuing until payment of the full amount of the award.

4. Application 00-11-038, Application 00-11-056, and Application 00-10-028 are closed.

This order is effective today.

Dated April 8, 2010, at San Francisco, California.

MICHAEL R. PEEVEY

President

DIAN M. GRUENEICH

JOHN A. BOHN

TIMOTHY ALAN SIMON

NANCY E. RYAN

Commissioners

APPENDIX A

Section A. - D.05-04-049

Background

These consolidated proceedings include the Post-Transition Ratemaking dockets (Application (A.) 99-01-016 et al.) in which we addressed post-rate freeze recovery of rate freeze costs, and the Rate Stabilization Plan dockets (A.00-11-038 et al.) in which we addressed Pacific Gas and Electric Company's (PG&E) and Edison's applications for emergency relief from the skyrocketing wholesale electricity prices in 2000. In the Post-Transition Ratemaking dockets, we determined that Pub. Util. Code § 368 bars utilities from recovering, through post-rate freeze rates, costs incurred during the rate freeze. (Decision (D.) 99-10-057, as modified by D.00-03-058.) (Subsequent statutory references are to the Public Utilities Code unless otherwise indicated.) In the Rate Stabilization Plan dockets, however, we ultimately authorized and implemented a rate increase of four cents/kWh in recognition of Edison's and PG&E's increased costs due to the extraordinary circumstances in California's wholesale power markets. (D.01-03-082.)

In November 2000, Edison and PG&E filed separate federal court actions challenging the Commission's jurisdiction to limit the utilities' recovery of their increased wholesale procurement costs.¹³ The Utility Reform Network (TURN) intervened in those actions.

The two federal lawsuits followed different procedural paths. PG&E filed for bankruptcy in April 2001, and the Commission entered into a settlement of the bankruptcy in December 2003. (See D.03-12-035.) Pursuant to the terms of the bankruptcy settlement, PG&E's federal court action will be dismissed.¹⁴

The Commission and Edison entered into a Joint Stipulation in settlement of Edison's federal lawsuit on October 2, 2001. TURN appealed the District Court's judgment affirming the settlement to the Ninth Circuit Court of Appeals. On September 23, 2002, the Ninth Circuit affirmed the District Court's judgment in part and certified several questions to the California Supreme Court regarding whether the agreement violated state law.¹⁵ On August 21, 2003, the Supreme Court answered the Ninth Circuit, concluding that the Stipulated Judgment did not violate state law.¹⁶

As these events were unfolding, TURN in July 2001 filed a request for compensation for the costs, among others, of the first six months of its participation in Edison's and PG&E's federal court actions. The Commission granted TURN's request 11 months later in D.02-06-070, finding that TURN had made a substantial contribution to the various decisions affecting the utilities' ability to recover their costs of wholesale power during the energy crisis. Because the federal lawsuits sought to challenge the Commission's authority to make those decisions, the Commission found that the costs of TURN's federal court work were reasonably incurred in order to make its substantial contribution to the adopted decisions.

Edison and PG&E each applied for rehearing of D.02-06-070 on the issue of compensation for TURN's federal district court work. We denied rehearing of our order, as modified. (See D.03-04-034.) Edison petitioned the Second Appellate District of the California Court of Appeal for writ of review of those orders. On October 8, 2003, the court issued the writ granting review. The court ultimately rejected Edison's appeal on April 19, 2004.¹⁷ Sixty days after the court's decision upholding D.02-06-070 and D.03-04-034,¹⁸ TURN filed this request for compensation. Edison opposes TURN's request only insofar as TURN seeks an award enhancement, full compensation for time spent preparing this request, and compensation for time spent on media and outside lobbying. TURN has replied to Edison's opposition.

(END OF APPENDIX A)

APPENDIX B

Table of Disallowances and Adjustments
Disallowances	Justification
2006-Palmer (58.2 hrs) 2007-Palmer (37.6 hrs) 2008-Woocher (.1 hr) 2006-Strumwasser (.2 hrs) 2007-Strumwasser (40.5 hrs) 2008-Strumwasser (1.3 hrs)	We disallow all compensation for TURN's work on issues other than hourly rates for outside counsel. TURN made no substantial contribution on these other issues. See section 3.3 (reduced $63,543.50).
2008-Strumwasser (19.8 hrs) 2008-Sridhar (18.9 hrs)	We disallow all hours related to TURN's work in petitioning the California Supreme Court. TURN's petition to the California Supreme Court did not assist us in carrying out our statutory mandate, and as such, is non-compensable. See section 3.3 (reduced $20,124).
2007-Foley (1.4 hrs) 2008-Foley (1.2 hrs)	We disallow all of Foley's hours as being clerical in nature. We consider clerical support to be subsumed in the hourly rates we award to attorneys and experts and as such are non-compensable. See section 6 (reduced $377.00).
2005-Finkelstein (19.0 hrs) 2007-Finkelstein (5.4 hrs) 2008-Finkelstein (7.8 hrs) 2005-Florio (.30 hrs) 2005-Palmer (27.6 hrs) 2006-Palmer (.92 hrs) 2007-Palmer (20.16 hrs) 2004-Monroe (.24 hrs) 2005-Woocher (.80 hrs) 2008-Woocher (3.4 hrs) 2004-Strumwasser (15.44 hrs) 2005-Strumwasser (13.0 hrs) 2006-Strumwasser (.92 hrs) 2007-Strumwasser (21.08 hrs) 2008-Strumwasser (21.64 hrs) 2008-Washington (8.56 hrs)	40% disallowance to the hours TURN claimed under the "General" category. See section 3.4 (reduced $82,966.20).
2007-Finkelstein (3.5 hrs)	Disallowed to correct double entry by TURN's admission (reduced $1,522.50).
2004-Strumwasser (9.8 hrs)	Untimely request. See section 4 (reduced $2,695).
Costs	Disallow filing fees, computer research, photocopies, overnight mail and postage expenses related to TURN's petition to the California Supreme Court for lack of substantial contribution. See section 7 (reduced $1,500.26).

(END OF APPENDIX B)

APPENDIX C

Compensation Decision Summary Information

Compensation Decision:	D1004023	Modifies Decision? No
Contribution Decision(s):	D0703017 D1002008
Proceeding(s):	A0011038, A0011056, A0010028
Author:	ALJ Kotz
Payer(s):	Southern California Edison Company

Intervenor Information

Intervenor	Claim Date	Amount Requested	Amount Awarded	Multiplier?	Reason Change / Disallowance
The Utility Reform Network	2/9/2009	$300,681.25	$127,952.79	No	Lack of substantial contribution, excessive hours

Advocate Information

First Name	Last Name	Type	Intervenor	Hourly Fee Requested	Year Hourly Fee Requested	Amended or Adopted hourly fees
Michael	Strumwasser	Attorney	The Utility Reform Network	$550	2004	$550
Michael	Strumwasser	Attorney	The Utility Reform Network	$575	2005	$575
Michael	Strumwasser	Attorney	The Utility Reform Network	$575	2006	$575
Michael	Strumwasser	Attorney	The Utility Reform Network	$625	2007	$625
Michael	Strumwasser	Attorney	The Utility Reform Network	$626	2008	$625
Frederic	Woocher	Attorney	The Utility Reform Network	$575	2005	$575
Frederic	Woocher	Attorney	The Utility Reform Network	$625	2008	$625
Beverly	Grossman-Palmer	Attorney	The Utility Reform Network	$375	2005	$375
Beverly	Grossman-Palmer	Attorney	The Utility Reform Network	$375	2006	$375
Beverly	Grossman-Palmer	Attorney	The Utility Reform Network	$410	2007	$410
Aparna	Sridhar	Attorney	The Utility Reform Network	$410	2008	$410
Becky	Monroe	Attorney	The Utility Reform Network	$225	2004	$225
Zariah	Washington	Attorney	The Utility Reform Network	$410	2008	$410
Robert	Finkelstein	Attorney	The Utility Reform Network	$395	2005	$395
Robert	Finkelstein	Attorney	The Utility Reform Network	$435	2007	$435
Robert	Finkelstein	Attorney	The Utility Reform Network	$470	2008	$470
Michel	Florio	Attorney	The Utility Reform Network	$470	2005	$470

(END OF APPENDIX C)

¹³ Edison v. Lynch et al., Case No. 00-12056-RSWL (Mcx), United States District Court for the Central District of California (Western Division) (filed November 13, 2000), and PG&E v. Lynch, et al., Case No. CV 00-4128 (SBA), United States District Court for the Northern District of California (filed November 8, 2000).

¹⁴ PG&E v. Lynch remains an open docket, pending resolution of an appeal of the Commission's decision approving the settlement (D.03-12-035) and of the confirmation order approving the settlement in bankruptcy court (In re Pacific Gas and Electric Company, Debtor, United States Bankruptcy Court, Northern District of California, San Francisco Division, Case No. 01-30923 DM, Confirmation Order, dated December 22, 2003).

¹⁵ Edison v. Lynch, 308 F.3d 794 (9th Cir. 2002).

¹⁶ Edison v. Peevey (2003) 31 Cal. 4th 781. The Ninth Circuit entered final judgment in Edison v. Lynch on December 19, 2003, bringing Edison's federal lawsuit to a close. (See 353 F.3d 648.)

¹⁷ Edison v. CPUC (2004) 117 Cal. App. 4th 1039.

¹⁸ On November 22, 2002, TURN filed a request for intervenor compensation for its work in the federal lawsuits from mid-2001 through September 2002. The Commission denied the request without prejudice because the Commission wanted to await final determinations on the federal lawsuits before evaluating it. (See D.03-12-044.)